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Nov. 7 --An Alabama nursing home operator no longer is contesting a National
Labor Relations Board ruling that allowed a union to win certification as the
bargaining agent of the home's certified nursing assistants, but the impact of
that decision--the board's controversial 2011 ruling in Specialty
Healthcare--remains in doubt, a panel of lawyers told participants at the
annual conference of the American Bar Association's Section of Labor and
Employment Law in New Orleans Nov. 7.

Andrea J. Wilkes, the NLRB's
deputy regional attorney in New Orleans and moderator of the conference
session, said the Mobile, Ala., long-term care facility has been sold, and
negotiations are under way for a collective bargaining agreement covering the
certified nursing assistants. The contract talks with the United Steelworkers
follow five years of litigation over the union's filing a petition to represent
approximately 53 CNAs. The employer argued unsuccessfully through lengthy board
proceedings and appellate litigation that only a larger voting unit would be
legally appropriate.

William H. Haller, associate general counsel of the
International Association of Machinists, told the audience that he doesn't
think the ruling in Specialty Healthcare & Rehabilitation Center,
357 N.L.R.B. No. 83, 191 LRRM 1137 (2011) (169 DLR AA-1, 8/31/11), “really
changes anything.” But Tanja L. Thompson of Littler Mendelson in Memphis,
Tenn., said the board ruling was “definitely a new standard” for determining
appropriate units that might have important practical effects for many
employers.

NLRB Ruled on Bargaining Unit Determinations

According to the NLRB decision, United Steelworkers District 9 filed a
petition seeking to represent a unit of full-time and regular part-time CNAs at
the Mobile, Ala., facility. An NLRB regional director found that the requested
unit was appropriate and directed an election.

Arguing that the only
appropriate unit for voting would need to include 33 additional nonprofessional
service and maintenance employees, Specialty Healthcare requested board review.
The NLRB granted review, and decided to invite the filing of amicus briefs in
the case (357 N.L.R.B. No. 56, 189 LRRM 1449 (2010); 245 DLR AA-1,
12/22/10).

Business groups, unions, and several Republican senators filed
arguments in response to the board's invitation (48 DLR C-1, 3/11/11). In
August 2011, the board issued a 3-1 decision finding the CNA unit was
appropriate despite the exclusion of other employees from the voting group.

The NLRB overruled Park Manor Care Center, 305 N.L.R.B. 872, 139 LRRM
1049 (1991), a decision holding that in nonacute health care facilities the
NLRB should take a pragmatic or empirical approach to unit determinations that
could include consideration of recurring factual patterns as well as
traditional “community of interest factors.”

The board majority in
Specialty Healthcare, consisting of then-Chairman Wilma B. Liebman and
then-Members Craig Becker and Mark Gaston Pearce, said the board would return
to applying a “traditional community-of-interest approach” in nursing home
cases.

The board majority in Specialty
Healthcare, consisting of then-Chairman Liebman and then-Members Becker and
Pearce, said the board would return to applying a “traditional
community-of-interest approach” in nursing home cases.

The
board also found that in any case in which a party contends that a
petitioned-for unit containing a “readily identifiable” group of workers is
underinclusive and therefore inappropriate, “the burden is on the party
contending to demonstrate that the excluded employees share an overwhelming
community of interest with the included employees.”

Sixth Circuit Backed
Board Decision

The Steelworkers won an election among the CNAs. The
Alabama nursing home refused to bargain with the union and then petitioned for
review in the U.S. Court of Appeals for the Sixth Circuit when the NLRB relied
on the election certification to make unfair labor practice findings against
the employer.

The Sixth Circuit enforced the NLRB order, ruling in
Kindred Nursing Centers East LLC v. NLRB, 727 F.3d 552, 196 LRRM 2545
(6th Cir. 2013), that the NLRB acted within its “wide discretion” under the
NLRA in applying a version of the board's traditional community-of-interest
test to the Alabama dispute.

Stating that “it is within the Board's
purview to choose to follow one of its precedents or reject another,” the Sixth
Circuit wrote, “If the Board believes it can best fulfill its statutory duty by
adopting a test from one of its precedents over another, then the Board does
not abuse its discretion.”

The NLRB adequately explained its decision to
overrule Park Manor and to clarify its community-of-interest standard,
the appeals court said.

Union Lawyer Sees No Radical Change

Haller said the board's discussion of an “overwhelming” community of
interest only “elucidates” that where a union has petitioned for an election in
a unit that is appropriate under the National Labor Relations Act, “surely the
employer should have the burden to persuade a regional director that the unit
is not appropriate.”

Haller said the Sixth Circuit rejected all of the
arguments marshalled by management lawyers in opposition to the NLRB ruling. “I
think it's a standard that's here to stay,” the IAM lawyer said.

The
union lawyer acknowledged the argument that Specialty Healthcare would
lead to fragmented “micro-units” that could lead to workplace disruptions and
unstable bargaining relationships, but he said “it's too early to say” whether
the ruling will actually have such an effect in the long term.

If labor
unions appear to be filing representation petitions for small groups of
employees, Haller said, it may simply reflect the difficulties they face in
organizing “with or without Specialty Healthcare.” He said unions
sometimes work on organizing small groups of workers when larger-scale
campaigns appear to be out of reach.

Haller said predictions about
proliferating organizing drives among tiny groups of employees may be
exaggerated. “What kind of leverage can a union have in these little units?”
Haller asked. He added that there may be no point in a union's filing a
petition to represent a “micro-unit” in a larger workforce.

Management
Attorney Calls Risks Uncertain but Real

Thompson, who represents
employers, took a different view of the NLRB ruling.

Stating that
Specialty Healthcare took NLRB beyond a simple community-of-interest
analysis in representation cases, she questioned why the board saw a need to
reformulate representation case standards in the absence of any apparent
“scramble” by stakeholders for new ground rules.

Thompson said the board
clearly shifted to the employer a burden of showing that employees excluded
from the voting unit requested by a union have an overwhelming community of
interest with the employees covered by the union's petition. She called the
board's description of the overwhelming community of interest “a little bit
fuzzy.”

The management lawyer said since the board's announcement of
Specialty Healthcare, there have been few decisions for employers based
on challenges to the appropriateness of a union's requested voting unit. Only
if the union seeks a “fractured” unit of employees will the board find that the
requested unit is not an appropriate grouping under the NLRA, she said.

Thompson said “we're still waiting for the other shoe to drop” on the
questions of whether Specialty Healthcare will lead to an excessive
fragmentation of bargaining units and what effect the ruling may have in other
industries, including retail stores, where employers emphasize their need for
“seamless” work flows that may depend on the functional integration or
interchange of employees performing different jobs.

Responding to
Haller's argument that unions may have little to gain from organizing very
small employee groups, Thompson warned that a union gaining the right to
represent even a small group wins important legal rights, including a right of
access to the employer's premises, the right to demand information relevant to
bargaining, the opportunity to propose terms and conditions of employment for a
small unit within a larger staff, and the right to call a strike.

Clearly, Thompson observed, winning such legal rights can have an important
impact on the union that represents a small group and it makes an important
change for the affected employer.

To contact the reporter
on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible
for this story: Susan J. McGolrick at smcgolrick@bna.com

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